Dorf on Law

By Mike Dorf In yesterday's post I summarized my remarks on the panel at Boston University Law School discussing the new book by Jim Fleming and Linda McClain, Ordered Liberty .  Those remarks focused on a point they develop in the first three chapters.  Here I'll provide a brief summary of the proceedings and then turn to a different point about the book. The panel featured comments by me, by Harvard Law Professor Dick Fallon and by Brandeis Philosophy Professor Marion Smiley --followed by a response from the authors and then Q&A with the audience.  All three of us praised the book and noted that we agreed with nearly all of it but that it is the nature of these events to focus on disagreements.  Each of the others made a number of points, but I'll simply highlight what I thought was the most pointed challenge each posed. Noting the tendency of Fleming and McClain to explain in many instances how liberalism is capacious enough to accommodate the value th...

By Mike Dorf Today I am scheduled to be on a panel at Boston University Law School discussing the excellent new book by BU LS Professors Jim Fleming and Linda McClain, Ordered Liberty .  The book defends liberalism against communitarian, civic republican and related criticisms.  In this post, I'll discuss what I plan to say in my remarks, which focus on the first three chapters of the book.  There (and in various places throughout the book), the authors address the following charge: Liberalism improperly elevates rights above responsibilities, and thus improperly elevates the individual above the group. Fleming and McClain have each addressed such charges in their solo writings--especially in their respective books, Securing Constitutional Democracy (Fleming), and  The Place of Families (McClain)--but teamed up they make a powerful combination. The core of their response relies on a kind of intellectual jujitsu.  Communitarians often complain that libera...

By Mike Dorf The "kill list" is back in the news, with the publication of a white paper that sets out the core of the Obama Administration's legal rationale for killing American citizens suspected of terrorism. When word of the underlying memo first leaked in the fall of 2011, I noted my puzzlement at how it appeared to blend analysis based on both a war paradigm and a domestic law enforcement paradigm, but I have since come to think that this approach was more or less required by Hamdi v. Rumsfeld , which applied a due process paradigm developed in the context of civilian cases to the detention of Americans captured in war. The white paper confirms the Administration's reliance on Hamdi . The substantive legal debate centers on two issues: (1)  What criteria must be satisfied in order for the U.S. to kill a U.S. citizen suspected of terrorism? and (2) What institution  makes that judgment.  Civil libertarians tend to argue for strict criteria and judicial overs...

-- Posted by Neil H. Buchanan The Yap Islands are famous among economists for their stones.  Generally speaking, economists have no interest in anthropology or history -- or, for that matter, in any interdisciplinary discourse at all.  (See, for example, this full-throated hymn to the glories of economics and its supposed superiority over all other social sciences.)   The Yap stones, however, serve a useful role in explicating the logic of money (without challenging any of the key assumptions underlying orthodox economic theory), which allows economists to tell the story without guilt. The Yap stones were a form of money .  Like any other commodity-based money, the stones were used to transact business, with the stones themselves not being fundamentally useful.  (They were shiny, so people liked them.)  Unlike other forms of commodity money, however, the stones were enormous.  Rather than putting a few seashells or gold coins in one's pocket, owne...

by Sherry F. Colb In the first of a two-part series of columns on Verdict , I discuss the case of Salinas v. Texas , in which the U.S. Supreme Court recently granted certiorari.  The case asks the following question:  Does a suspect who is not in custody and has received no Miranda warnings have the right to remain silent in response to a police officer's questions, such that a prosecutor is barred from introducing the defendant's prior silence at trial as affirmative evidence of his guilt?  In my column, I analyze some of the case law that bears on this question and consider how the Court might rule. In this post, I want to focus more generally on the question of penalties for the exercise of rights that this case necessarily raises.  In Salinas , the petitioner argues that if the government can introduce his silence as proof of guilt, then the suspect essentially operates under a threat:  you either answer our questions or the prosecutor will tell the jur...

-- Posted by Neil H. Buchanan My Dorf on Law post this past Friday began with a discussion of how the Federal Reserve (the Fed) works, in order to explore some of the options available, should the U.S. ever reach the actual drop-dead date on the debt ceiling.  In the latter part of the post, I compared two unappealing policy paths that a President might follow in that situation: (1) the Big Coin gambit (minting large-denomination platinum coins), or (2) simply ordering the printing of more currency with which to pay the government's bills.  I ended up (very reluctantly, and only if the choice was between those two terrible options) arguing that the Big Coin gambit was actually better than printing money. There are some fun logistical issues that also contribute to that conclusion, which I might describe in a future post.  Right now, however, I want to pay closer attention to a distinction that I mentioned in passing on Friday, in order to work through how the Feder...

By Mike Dorf My latest Verdict column examines three bad arguments that appear in the brief filed by the misleadingly named Bipartisan Legal Advisory Group (BLAG) in the pending SCOTUS Defense of Marriage Act (DOMA) case, United States v. Windsor .  Because the lead lawyer for the BLAG, former GW Bush SG Paul Clement, is excellent, I puzzle over why the brief includes these very bad arguments. I settle on dishonesty as the best explanation. The real reason for DOMA's enactment was hostility to recognizing the full rights of LGBT Americans (or what amounts to the same thing--a willingness of politicians to cater to such hostility in their constituents).  But neither Supreme Court precedent condemning animus-based legislation nor contemporary public norms (which have progressed since DOMA was enacted) permit the BLAG to argue successfully that DOMA should be sustained because Congress could choose to enact legislation treating LGBT Americans as immoral, disgusting or secon...

-- Posted by Neil H. Buchanan On the comments board for two of my recent posts about the debt ceiling (" A Priority List of the Available (All Bad) Choices in the Upcoming Deadlock ," January 16, and " The Limits of Political Framing, or: How Many Fig Leaves Can Senator McConnell Create? " January 24), a reader with the well-chosen internet handle "curious" posed some very good questions.  On the earlier post, the questions were: "Why isn't the Federal Reserve subject to the debt ceiling? Where does the Fed get the money from to exchange for Treasuries or platinum coins or to purchase other bonds or otherwise engage in QE or monetary policy generally?" On the second post, the questions were: "Why would the Federal Reserve get the trillion dollar coin? "Why can't the government just use the coin to pay its bills directly? "What is the Federal Reserve? And why isn't it the Federal Reserve subject to the d...

[Note: After this post was sent out in the morning Dorf on Law email, I lightly edited the online version, to correct some typos, grammatical errors, and unclear phrasing that had survived the writing process.] -- Posted by Neil H. Buchanan My column today on Verdict discusses a welcome development in the discussion of the government's fiscal situation: the sudden realization that the "debt problem" is not such a problem after all.   Specifically, forecasts now show that the debt-to-GDP ratio is going to be falling for several years, and will only return to its current level about a decade from now.  That, at the very least, provides breathing room to determine whether the slowing of health care cost inflation is for real, and more generally to try to make that happen. I am not saying that this reality is now widely understood, but it has at least reached the point where political insiders like Tim Geithner admit it out loud.  The Center on Budget and Policy Pri...

Posted by Sherry F. Colb In my Verdict column for this week, I discuss Evans v. Michigan , a Double Jeopardy case pending in the U.S. Supreme Court.  The issue in Evans is whether the Fifth Amendment right against being tried more than once for the same crime precludes retrial when a judge, after the close of the State's evidence, grants the defendant's motion for a directed verdict on the basis of the judge's having mistakenly added an additional, non-existent element to the crime to be proved.  In my column, I discuss the issue in Evans  in the light of the Court's decision in Blueford v. Arkansas  last term. In this post, I want to consider the larger question of whether substance is more or less important to a just system than is process.  The Double Jeopardy Clause provides a primarily process-oriented right to criminal defendants, although it may serve substantive values, as I suggest in my column, by preventing an oppressive government agent from re...